A trademark is a word, phrase, design, or symbol, or a combination of the foregoing that distinguishes your company’s goods from those of another. A service mark is the same as a trademark, except that it distinguishes services rather than products.
Large and small businesses alike spend a great deal of time and money developing an identifying mark, which they use to distinguish their brand in the marketplace. If another business begins using the same or similar mark with the same services or in the same field, then much of the value from this investment can be lost.
While registration with the U.S. Patent & Trademark Office (“USPTO”) is not required to establish trademark rights in a mark, owning a federal trademark registration provides many important legal advantages.
These advantages include:
- Registration is prima facie evidence of the validity of the registered mark, of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the registered mark;
- Nationwide constructive notice that the registrant is the exclusive owner of the mark;
- Availability of increased statutory damages, punitive damages, and attorney’s fees in an infringement action;
- Registration becomes incontestable after 5 years of continuous use in commerce, meaning that the registration becomes conclusive evidence of the registrant’s exclusive right to use the mark, subject to certain statutory defenses;
- Use of the ® symbol to denote federal Registration (the ™ or ℠ symbol is to be used for unregistered trademarks or service marks);
- Original jurisdiction in the Federal District Courts for trademark infringement actions.
If a mark is not registered, protection rights in the mark are still covered under common law. In a common law action, however, there are no presumptions, and the entire burden of proving ownership and infringement rests on the business claiming ownership. Having to prove those standards can be costly and can result in much longer delays than if the claimant had simply registered the mark with the USPTO.
If you are looking to protect the name or logo of your business, or if you have further questions regarding the trademark registration process, contact the Law Office of Terence J. Everitt at 919-561-1416 or submit an inquiry here. Mr. Everitt is a Wake Forest business lawyer serving individuals and businesses throughout Wake County, including Raleigh, Rolesville, Youngsville, Morrisville and Cary.